Science, Sanity and the Law

If you have never entertained, however fleetingly, the prospect of killing your children, you're probably not spending enough time with them. Fortunately for the species, few of us ever act on such feelings. So few, in fact, that the rare parent like Andrea Yates, who in 2001 killed her four small children, strikes us immediately as monstrous or insane or both.

Reason's Brian Doherty posts a very fine article today about our struggles as a society with the notions of sanity, responsibility, free will and the law. The legal so-called insanity defense continues to fascinate us precisely because it touches so many deep mysteries about life, typically arising under the most gruesome and horrifying of situations. "Insanity" is a term long ago abandoned by the psychiatric profession, but the relationship between what is, at bottom, a legal defense justified on moral grounds and what purports to be increasing scientific evidence against the notion of free will of any sort continues to lie at the heart of the issues raised.

It is a basic tenet of ethics that ought implies can; that is, that holding someone blameworthy (or praiseworthy) for an act can be meaningful and justifiable only if that person could have done other than he did, in fact, do. Logically, it must also hold that "ought not" implies that the person could have refrained from doing whatever was done. Those who deny the existence of volitional or intentional human agency (i.e., free will) but contend that society must nonetheless indulge in the useful fiction of contending otherwise and holding people 'responsible' for their 'acts' are not, I think, all that far removed from those who hold that belief in God is necessary for there to be any moral order. Of course, by their own theory they are incapable of holding contrary views, so perhaps we can forgive them this conceptually muddled attempt to have their determinist cake and freely eat it, too.

In fairness, one can make a case for the notion that in society at large 'pretending' that criminals could refrain from committing their crimes so to justify 'punishing' them may well have a general deterrent effect. That is to say, 'punishing' certain acts raises the known consequences of their commission and people in general respond to such incentives and disincentives, whether freely or not.

But at the fringes of "people in general" lie those whose minds are so deranged (or, if you will, whose brains are so disfunctional) that the notion of general deterrence breaks down completely. These are, ironically, the people who are the most likely candidates for the insanity defense. Put simply, punishing the truly psychotic is unlikely to have any effect on the behavior of other truly psychotic persons. Indeed, it is almost definitional that such persons do not respond to the world as you and I do.

If we are only play-acting at a belief in free will in our criminal justice system as it deals with ordinary people, then surely we must be indulging in a play within a play when we go through the motions of a criminal trial with such persons, grappling with questions such as the (in)famous M'Naghten test whether "...at the time of the committing of the act, the party accused was laboring under such a defect of reason, arising from a disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what he was doing was wrong."

Society must, of course, remove or restrain those who, for whatever causes or reasons, pose a deadly threat. But what possible difference can knowing what one is doing or knowing it is deemed wrong by others make if one cannot act otherwise anyway?

[EDIT: The first posted version read "scientific evidence of free will" and should have read and now does read "scientific evidence against the notion of free will."]